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2021 (2) TMI 348 - ITAT SURATAdditional long term capital gain earned on sale of agriculture land - assessee adopted cost of land as on 01.04.1981 @ ₹ 110/- per Sq mtr on the basis of report of Government Approved Valuer, which is higher to the alleged fair market value suggested by DVO - AO disregarded the working of the assessee and computed LTCG, on the basis of information gathered from the officer of Sub- Registrar Surat about the value of land in the area in 1981 in Vesu area of Surat, at ₹ 6.45/- per Sq mtr. - Commissioner (Appeals) made reference to the DVO - whether the Assessing Officer was empowered to make reference to the DVO when he was of the view that the value adopted by assessee for computing LTCG “is at variance with its fair market value”? - HELD THAT:- As decided in Jignesh Kumar N Modi HUF [2019 (6) TMI 1571 - ITAT SURAT] when the transaction of the land taken place during the financial year 2011-12 relevant the assessment year 2012-13, the amended provisions of section 55A(a) would not be applicable and one shall be guided by the erstwhile provisions of section 55A(a) of the Act. It was also held that in order to refer the matter to the valuation officer as per under erstwhile provisions of section 55A(a) of the Act would be applicable - value so claimed by assessee is less than its Fair Market Value in the opinion of Assessing Officer, matter can be referred to valuation officer. In a scenario, where the value so claimed by the assessee is more than its fair market value, the matter could not be referred to the valuation officer. It was ultimately held that the Assessing Officer was not empowered to refer the matter to the valuation officer, even as per the erstwhile provisions of section 55A(a) prior to amendment by the Finance Act, 2012. Also see M/S. PUJA PRINTS [2014 (1) TMI 764 - BOMBAY HIGH COURT] Thus we hold that reference made to the DVO by Assessing Officer for determination of Fair Market Value was not valid. Therefore, respectfully following the same, we accept the legal submissions of the ld. AR of the assessee and held the reference to the DVO for determination of fair market value is not valid. No contrary facts or law is brought to our notice to take other view. Penalty u/s 271(1)(c) - No sufficient opportunity of hearing given to assessee - HELD THAT:- No notice on the address provided by assessee was sent to the assessee and that the assessee has good case on merit and is likely to succeed, if the assessee is given opportunity of hearing on merit. We find merit in the submissions of the ld. AR for the assessee that the assessee was prevented by sufficient cause in non-appearance before ld. Commissioner (Appeals). Moreover, the ld. Commissioner (Appeals) has not passed order as per the mandate of section 250(6) of Income Tax Act. Therefore, we restore the appeal to the file of ld. Commissioner (Appeals) to consider the grounds of appeal raised by the assessee afresh. We find that the additional grounds of appeal is purely legal in nature and will not require to bring additional facts on record, thus, the additional ground of appeal is admitted and is also restore back to the file of ld. Commissioner (Appeals)
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